March 26, 2013

There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time

SCOTUSblog tweets from the oral argument.

Note the significance of "Would leave in place 9th Cir pro-#ssm ruling." Prop 8 will still be stricken down, because that's what the 9th Circuit decided. I want to see the transcript (and hear the oral argument) before reacting too much to these characterizations.

So Kennedy performed the Theater of the Very Uncomfortable. That could set the stage for exercising the very painful duty of pronouncing a law a nullity. It's supposed to hurt! It's not what we want, but what we must do.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8....

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn't mean he won't join them in the end.

83 comments:

So "tea leaf" reading. Two possible ways this could go (assuming this Tweet is true)

1. If there is no appetite to strike down prop 8, how can he vote to strike down DOMA which passed Congress by huge majorities?So he won't.

2. This is a fig leaf to the right before striking down DOMA. Remember Kennedy is the "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" guy after all.

If they have grounds to dismiss the appeal on the matter of the appellant's standing to take over when the state refused to defend the law, then they have grounds to dismiss the entire case ab initio - dismissing the plaintiffs' complaint, thus upholding the law - on the grounds of a lack of case or controversy, given that both plaintiffs and the state defendant are on the same side.

"SAN FRANCISCO--Jean Podrasky, 48, a lesbian who wants to marry her partner, will be at Tuesday’s U.S. Supreme Court hearing on Proposition 8 in seating reserved for family members and guests of Chief Justice John G. Roberts Jr."

(Lifted from the LA Times)

Which immediately reminded me of this scene from the Godfather:

http://www.youtube.com/watch?v=WJI9vpKRP5I

In the scene Frank Pantegelli changes his previous sworn testimony when his brother from Sicily makes a surprise appearance in the courtroom audience.

The Court will eventually strike down SSM bans. Everyone knows it. I don't see them handing down a Bowers type decision which they have to apologize for in a few years. A decision on standing is the right way to go if they aren't ready to do their jobs yet.

Changing subjects slightly. Since you teach in Wisconsin, which, like California, has a Constitution that supports the "progressive" (in the old school meaning of empowering the people to make law against the wishes of their elected masters) voter initiative process. Ignoring the subject matter, on whose position you have made yourself clear.

Is it appropriate for the courts and the state executive to thwart the will of the people as recorded by initiatives?

I have a serious problem with people who vote on something only to have the butthurt sue to overturn that vote. They did it with Prop. 187, they also tried to do it with The Cross on Mount Soledad, and now Prop. 8. What is the point in voting on a state initiative or proposition when you know you that the opposing side already have legal briefs typed up and waiting to file if the outcome doesn't go their way?

Scrooge said...The Court will eventually strike down SSM bans. Everyone knows it. I don't see them handing down a Bowers type decision which they have to apologize for in a few years. A decision on standing is the right way to go if they aren't ready to do their jobs yet.

Sounds like Scrooge had a visit from a trinity of spirits representing the past, present and future of marriage.

On the ACA: Most people said that it would work, as a tax. But, since there wasn't a substantial discussion about it as a tax, most people assumed it wouldn't even be considered. Not only that, but we were promised that it was not a tax by everyone from the president on down. So, you can see why there was confusion.

The notion that the will of the people can be overruled because an activist court finds a bizarre interpretation and the current executive refuses to defend the law, really means that the people have no redress. Just awful.

There's enormous pressure to find a "right" to marry. If the Court doesn't cooperate, will their decision be accepted?

And what happens 10 - 20 - 30 years out, when marriage is just a way to get pubic recognition and government benefits, nothing more? Exactly how high will the % of births to unmarried women climb? Will a pregnancy within marriage be a mere coincidence?

If J. Kennedy is concerned about the Court hearing this case, he will not be inclined to base his decision on standing--this would have the effect of leaving the district court's decision striking down Proposition 8 intact.

More likely, he will be comfortable with decision holding there was no federal juristiction for this case in the first place because it raises a political question. This would mean that the last ruling in the case by the state supreme court stands. (I believe that ruling upheld Proposition 8.)

If J. Kennedy is concerned about the Court hearing this case, he will not be inclined to base his decision on standing--this would have the effect of leaving the district court's decision striking down Proposition 8 intact.

More likely, he will be comfortable with decision holding there was no federal juristiction for this case in the first place because it raises a political question. This would mean that the last ruling in the case by the state supreme court stands. (I believe that ruling upheld Proposition 8.)

And what about all that hateful hatred of pedophiles? ANd for proponents and pratitioners of bestiality? Let's end all the governmental intrusion into what are really private matters and lifestyle choices!

Of course. It sounds too much fun for guys. I suspect this one will wait for the next generation.

Leftists will find their next victim class to advocate for. Probably Hispanics soon. You know, the ones we stole the land from. It's tricky, as blacks might not like their victim status being subordinated to brown people.

Where is the legal injury to either the couples or the children in a civil union?Maybe their feelings are hurt by not having the public officially apply the marriage label to them, but feelings are not a legal injury when every right and privilege is enjoyed by them.

A decision on standing is the right way to go if they aren't ready to do their jobs yet.

Well, it's the right way to go if you regard the whole subject of standing as meaningless bullshit, which might or might not be something we want judges believing. Barring that, it's only the right way to go if appellants actually do lack standing.

$8,000 a year? You think that comes anywhere near to the costs of raising a kid?

Then there is trying to raise them right, which in my opinion, requires a stay at home caregiver. Preferably female, as they are superior, in my view, with seeing things from the child's perspective and nurturing, breast feeding.

No. But I should clarify: the reporter was saying "average gay couple"

Mean? Median? Mode?

In any event, it doesn't sound like that much money per year. Say a 2 million gays elect to get married, that's only $8B a year to pay of gays, or $80B over 10 years. Of course, I think it is actually much more than that, for instance the woman suing against DOMA wants a $363,000 estate tax refund, and then there is health care.

Naturally, every guy ought to be able to marry a young Nancy maid while old, providing survivor benefits.

Maybe Ann is on to something. Let's get beyond this. Conservatives, if there are any left, can hold the line on polygamy (what's wrong with that?) and pedophilia. Of course, there is partial birth abortion, which I find quit horrifying, but Barbara Boxer thinks its OK.

Dante, there is no line to hold. It is impossible to justify sexual mores starting from first principles. We are just drawing arbitrary lines on the great continuum of human sexuality. Despite our hostess' claims, there will be no way to prove the claim of harm on polygamy, and I doubt that pederasty will be far behind. Is there social science to prove that buggering children would cause lasting them harm in a non-heteronormative environment? I doubt it sincerely. And what if they were buggered by caring, rich gay couples who lifted them out of the poverty of, say, a Rio slum? You may yet see a Catamite to Citizen program for the economically disadvantaged.

My hope here is that it's left to the states to define marriage. One, the Constitution never affirms this right nor give the federal government the power to define marriage. Second, I hope that DOMA is overturned on federalism grounds for the same reasons. The people of a state get to define marriage both within the legislature, public referendum and issue, and finally, in accordance with the state's constitution. I believe this concept applies just as much to polygamy as it does to same-sex marriage. This also applies to every state but Utah because a condition of Utah's entry into statehood was the prohibition of polygamy. As a libertarian, this makes sense and as a conservative, this makes sense.

"We grovel at their feet and beg them to validate our views. We act like their “rulings” can somehow re-calibrate the Moral Compass, alter metaphysical realities, turn right wrong and wrong right. When it comes to this issue or any other, whatever you believe the truth to be, you ought to still believe it regardless of what the Oracles in Black have to say. Do I need to run down a list of examples of the “Supreme Court” making deranged and psychotic decisions? If something is wrong, it’s still wrong even if the Supreme court calls it right. If something is right, it’s still right even if the Supreme Court calls it wrong."

It reminds me that I saw a business reporter on CNN yesterday excitedly informing viewers that gay couples are losing $8,000 per year in tax benefits because they can't be married.

This is almost certainly false. A married couple with similar incomes pays more in tax than two similar singles cohabitating, and the income difference has to be extraordinary before the effects reverse. Since gay couples are more often dual earners more are going to face a tax penalty than a benefit.

It's extremely likely that reporter was fed the specific case of a stay at home partner for the comparison and was too ignorant to understand how unlikely that is.

"Is it appropriate for the courts and the state executive to thwart the will of the people as recorded by initiatives?"

First, I think initiatives are unconstitutional -- a violation of the Guarantee Clause. Second, I think a politically accountable decision maker should make the call about when to appeal and what legal arguments to press. Third, the state executive has a duty to follow the Constitution.

Those are three reasons to answer yes.

I'm a bit disturbed by the disarray here, but we went down the wrong path when we accepted referenda.